Monday, August 30, 2010

Bankruptcy Judge Olson Denies Incendiary Motion To Recuse.

Although many tipsters (thank you!) alerted me to this motion to recuse filed before Fort Lauderdale Bankruptcy Judge John K. Olson last week, I was reluctant to blog about it.

To be honest, I still am.

In any event, Judge Olson has now forcefully (in my view, persuasively) addressed the motion on the record.

He held an expedited hearing on the motion Thursday afternoon, and just entered his order denying the recusal request.

The order has a pretty good summary of the alleged grounds, which I won't repeat here, but Judge Olson really gets going when he discusses the type of "disclosure" the movants appear to be requiring of him:

The movants would have me engage in pointless record disclosure at the beginning of every matter in which Ruden McClosky represents a party:

For the record, I am getting married to an attorney who works for the Plaintiff’s firm. He is not involved in this case and recusal is therefore not required under 28 U.S.C. § 455(b)(5)(ii). He is a salaried attorney who has no interest which could be affected such that recusal is not required under 28 U.S.C. § 455(b)(4) or (b)(5)(iii). This record disclosure is required pursuant to § 455(a) and (e) to avoid any appearance of impropriety, but you are not entitled to withhold waiver because my fiancé’s employment is an insufficient basis for recusal under the case law applying § 455. Please confer outside of my presence and notify my law clerk when you are prepared to give your mandatory record waiver.

And this is no joke. This is quite literally what the movants are asking for. Their misunderstanding of § 455 was painfully betrayed at the August 26th hearing when movants’ counsel forcefully argued that I should recuse myself from any matter in which Ruden McClosky represents a party. Whether movants’ counsel did not adequately research the case law on this subject, or simply did not digest it, I do not know. But fiery, impassioned oral argument in the face of a glass mountain of precedent, with no acknowledgment of that glass mountain, and no hint at a good faith basis for a change in the law? This is normally sanctionable under Fed. R. Bankr. P. 9011(b). The only reason why sanctions are not warranted here despite this appalling lack of diligence is the “layman perception” rule.

31 comments:

Not to delve too deeply into matters that appeal to prurient interests- but what I can tell from this order is that : 1- the judge is a man; 2- he has an ex-wife; 3- his fiancee is a man; 4- ipso facto - the judge is openly gay. 5- there is a pending marriage.

BUT since neither Florida nor the federal government recognize same sex marriages (and they both should- it has long been my position that homosexuals are not special and should be as miserable as the rest of us)

If I proposed to my partner here in Miami, and plan to marry in, say Connecticut or Mass., we're still engaged. No matter where we go, we're engaged to be married in a jurisdiction where it is legal. The law in FL does not recognize same sex marriage, but it doesn't say anything about same sex engagement. The legislature can discriminate against my ability to get married here, but they can't do a damn thing about asking my partner for his hand in marriage someplace else. I hope that helps.

PS-- Best wishes and much happiness to the judge and his fiance on their upcoming nuptials.

BTW. I am a well-informed, objective person, and I think that this Judge should recuse himself because it does stink.

Bonuses are tied to profit, whether salaried or not, partner or otherwise. It stinks; clearly the judge's finance has a financial interest if he is to receive a higher bonus based on the firm's fiscal performance, which likely also relates in part (no matter how small) to this litigation.

This order smacks of the type of nastiness you see is State Court magistrates.

I don't practice in the bankruptcy court. But in federal court, I've had district judges and magistrate judges disclose family/friendship associations more attenuated than this and offer to recuse. And, the case law discussion by the judge did not seem as strong as he summed it up when he states the motion was sanctionable. I mean he was having to dig cases up from the former Fifth Circuit.

If the marriage is not legally recognized by Florida and the Feds, even if the engagement and later marriage may be in some states,what would be the reason for recusal be under 11usc455? The rule specifically only applies to "spouses". It doesn't say anything about fiances, girlfriends, boyfriends, etc. In fact, it specifically says spouse or minor children residing in household. People who are engaged often are not living in same household so this wouldn't apply.

Wow, subsequent events have certainly discredited this blog. All should be aware that Judge Olson quietly recused himself days after a hearing in which Judge Moreno expressed discomfort with the idea that any judge could sit on a case where a spouse was directly connected to the representation of a litigant. It is astounding to me that anyone could question this basic tenant of the judcial system, or have the slighest confidence in any court that could even entertain any other proposition. I am simply astonished that blogger agreed with the original order refusing to consider recusal. NOthing could be more prejudicial to the public's confidence in the judciary, and it is outrageous that this judge continues to wear a robe.

Run a google search on this jusdge! In addition this glaring conflict of interest with his fiance's boss, he was also involved in questionable decisions involving the Church of Scientology. Not only that, he severly sanctioned the other party's lawyer, who had the nerve to suggest that he should recuse himself in that case because the Church of Scientology gave his prior (female) wife a money when she ran for office. Why is this man allowed to stay on the bench? How can the public have any confidence with such obvious miscoduct runs unchecked?? Where is the public corruption investigation??!

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